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Marital rape will be punished, anyhow

“Marital rape should be made punishable,” hissed a female student of Journalism during a Media Laws lecture, “and the Government must do something about it,” she said, angry at the Government in particular and the nation’s apathy at large. “The Government would, if the people truly wanted it. And, it will, once the people are ready for it,” I explained to her and told her that the extent of criminality should and would, in time, be addressed, but moving beyond that and legislating on cultural norms was bordering on addressing personal laws which were held sacrosanct till date. “It’s an Elephant in the Room that someone will have to address,” I said. “Just give it time.”

A Common Civil Code that puts all on par where civil rights are concerned is one thing but Marital Rape is a tricky issue. Sex in a marriage and with the consent of a female below the age of 18 amounts to Rape. Now, in order to accommodate acts perpetrated by members of communities and groups wherein marriage was permitted as a Civil Act even when the female was below 18, the Rape Section provided a window. An exception clause to Section 375 of Indian Penal Code permitted sex by a man with his wife, not below 15.

However, over the years, in several cases, acts of sex with ‘minor’ females despite them being ‘lawfully wedded’ to the ‘culprits’ were questioned and categorised as acts of Rape. But, the exception in law stuck on paper.

That is till October 11th 2017 when India’s Supreme Court struck down the exception clause to Section 375 as ‘unconstitutional’. And, it’s a beginning: A step that should have been taken by the Legislature but one instead launched by a Judiciary armed with a new-fangled activism. After the stinging insult following the legendary Shah Bano case, when the judiciary had to eat humble pie owing to Legislative Intervention, the Supreme Court recently bolstered courage to adjudicate upon the Shayara Bano case wherein it struck down Instant Triple Talaq as being ‘Unconstitutional’. The judgement was suggestive of the mood of the Apex Court.

And now, the Supreme Court has done it again. After months of campaigning, India’s Supreme Court has begun tackling the issue of Marital Rape, albeit piecemeal. The Apex Court struck down the exception clause to the Rape provision in the Indian Penal Code as ‘Unconstitutional’ and ruled sexual intercourse with a minor wife between 15 years and 18 years of age as ‘Rape’.

Despite earlier maintaining it did not wish to get into the domain of marital rape, an issue that bordered on breaching personal rights and religious codes, the Apex Court now proclaimed the age of consent is 18 years for a woman and that could not be whittled down.

The two-judge bench said that sexual intercourse with a wife between 15 years and 18 years amounts to rape. In reaching this conclusion, the Supreme Court relied on the Child Marriage Prohibition Act too to reach this conclusion.

It may be recalled that the Gujarat High Court had, in 2015 ruled that Prohibition of Child Marriage Act will apply to a Muslim person too while turning down the petition of a Yunush Shaikh, who had moved the High Court to quash an FIR registered against him. An FIR was registered against him for abduction and rape under the Indian Penal Code and Protection of Children from Sexual Offences Act, 2012. He had eloped and married a 16-year-old girl in his neighbourhood.

In this case, Justice Pardhiwala relied on an earlier case in which on a conflict between any special law with personal law, a learned Single Judge of the Karnataka High Court in the case of Seema Begaum vs. State of Karnataka had ruled:

An operative Act is the expression of the will of sovereign legislature; it overrides the consistent provisions of the existing personal law. The personal law has to submit to the statute law. The personal law cannot be repugnant, contrariant or derogatory to the statute.

When a later statute makes a contrary provision to the earlier statute, it has to be taken that the Parliament has intended the earlier statute to be repealed, though it may not have said so expressly. The same is in accordance with the maxim Leges Posteriores Priores Contrarias Abrogant. (Later laws abrogate earlier contrary laws).

The statement of objects and reasons can be used for the limited purpose of understanding the background and the antecedent state of affairs leading up to the legislation. Reference to the statement of objects and reasons is permissible to understand the surrounding circumstances which render the remedying of the evil a paramount requirement.

“Those who have not allowed to change the Muslim Personal Law have done a great disservice to the community…the members of the community have realised the evil consequences of getting a Muslim girl married at a tendered age of 16 or 17 years,” had ruled Justice JB Pardiwala in the order passed then.

In the Sarla Mudgal v. Union of India case, the Supreme Court had held polygamy can be superseded by the State just as it can prohibit human sacrifice or the practice of Sati in the interest of public order. The personal law operates under the authority of the legislation and not under any religion and, therefore, the personal law can always be superseded or supplemented by legislation.

This time around, the Supreme Court has expressly ruled that immunity cannot be granted to a husband having sexual intercourse with his wife in this age group. The Apex Court judgment is a huge step in the direction of criminalising Marital Rape, an issue that no political party wishes to address as it touches upon personal laws and risks hurting community sentiments by its far-reaching repercussions. In a stunning display of activism, the Supreme Court remains mum on the acts of marriage of minors under Personal Law but criminalises sex!

The Elephant in the Room has caught the Judiciary’s eye. And, now it will be tackled. Whether the people are ready for it or not is another issue, the Judiciary has made the first move.

DISCLAIMER : Views expressed above are the author's own.

Blog

In Conversation attempts to bring into focus, key issues that affect life in general. Pegged on a chat with a commoner in private domain or a comment by a known figure in public domain, this blog will address matters that deserve to be in the news but don't figure for lack of glam value; sheer will on the part of policy-makers or simply lack the support of numbers so vital for an issue to be in public focus in a democracy. Personal in tone and pith, the blog will attempt to strike a balance between decrypting law and policy to reach the common while desisting from indulging in common-as-ever oversimplification and jingoism.

Author

Gajanan Khergamker is an independent editor and legal counsel with over three decades of experience. He heads DraftCraft – an India-based media-legal think tank that fetches news about the most ignored, under-reported segments of society and reach legal aid to the most deprived through positive activism and intervention. His areas of interest include public affairs, inclusion, conflict of interest, law and policy, foreign affairs, diversity and specific issues regarding the disabled, LBGT, women and animals. Website: www.draftcraft.in / Twitter handle: @viewsonthefly

Gajanan Khergamker is an independent editor and legal counsel with over three decades of experience. He heads DraftCraft – an India-based media-legal thin. . .

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Blog

In Conversation attempts to bring into focus, key issues that affect life in general. Pegged on a chat with a commoner in private domain or a comment by a known figure in public domain, this blog will address matters that deserve to be in the news but don't figure for lack of glam value; sheer will on the part of policy-makers or simply lack the support of numbers so vital for an issue to be in public focus in a democracy. Personal in tone and pith, the blog will attempt to strike a balance between decrypting law and policy to reach the common while desisting from indulging in common-as-ever oversimplification and jingoism.

Author

Gajanan Khergamker is an independent editor and legal counsel with over three decades of experience. He heads DraftCraft – an India-based media-legal think tank that fetches news about the most ignored, under-reported segments of society and reach legal aid to the most deprived through positive activism and intervention. His areas of interest include public affairs, inclusion, conflict of interest, law and policy, foreign affairs, diversity and specific issues regarding the disabled, LBGT, women and animals. Website: www.draftcraft.in / Twitter handle: @viewsonthefly

Gajanan Khergamker is an independent editor and legal counsel with over three decades of experience. He heads DraftCraft – an India-based media-legal thin. . .